Vito & Nick’s, Inc. v. Barraco., No. 05 C 2764, Slip Op. (N.D. Ill. Oct. 10, 2008) (Nolan, Mag. J.)

Judge Nolan granted defendants’ motion for litigation costs, but denied defendants’ motion for attorney’s fees. Plaintiff sued defendants alleging trademark infringement, Lanham Act unfair competition, Illinois Deceptive Trade Practices and related state law claims based upon a dispute over sibling’s competing use of the name of a family business. After initiation of the suit, the parties engaged in extensive settlement negotiations resulting in a framework for settlement. But plaintiff was unable to come up with funds necessary for the settlement and then lost its counsel. Because plaintiff was unable to find replacement counsel, and because corporations cannot appear pro se, plaintiff’s case was eventually dismissed for want of prosecution.

The Court held that plaintiff’s conduct resulting in dismissal did not constitute bad faith warranting an award for attorney’s fees. Plaintiff actively participated in the case and settlement negotiations, until it was unable to come up with the funds required, and lost its counsel. Furthermore, the Court had not had occasion to review the viability of plaintiff’s claim and, therefore, a bad faith finding could not be based upon the viability of the claims.

The Court did, however, award defendants their costs as prevailing parties pursuant to Fed. R. Civ. P. 54(d)(1), as follows:

• Costs of serving the summons and subpoenas;
• Court reporter, videographer, and transcript fees (transcripts were limited to $3.30 per page and did include indexes, minuscripts or other attorney convenience features);
• Witness fees; and
• Copy costs (limited to $.10 – $.20 per page).